JUDGMENT : R. K. VARMA, J. On an application under section 44 (1) of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act") made by the applicant-assessee, the Tribunal has referred the following question of law to this Court for its opinion : " Whether, under the facts and circumstances of the case, the Board of Revenue was justified in holding that penalty of Rs. 4,000 imposed under section 43 (1) of the Act was proper when the assessment period involved was 1961 ?" 2. The material facts giving rise to this reference, briefly stated, are as follows : The applicant is a dealer who carries on business of manufacturing and sale of vegetable ghee, edible oil, soap and oil cakes, etc. The applicant-assessee was assessed to tax for the calendar year 1961 and a penalty of Rs. 4,000 under section 43 (1) of the Act was imposed on him on the ground that he had not included sales tax collected by him separately in the returns. 3. In first appeal the order of penalty was maintained by the appellate authority. 4. In second appeal before the Tribunal it was submitted on behalf of the assessee that it was an old case of 1961 and the legal position whether tax collected separately was to be included in the returns or not, had not become clear. As such, the assessee was under bona fide impression that tax separately collected did not form part of consideration or price of goods. The learned Tribunal, however, rejected the submission of the assessee and maintained the order of penalty by its order dated 30th March, 1982, passed in Appeal No. 196-PBR-79. 5. On an application under section 44 (1) of the Act filed by the assessee requiring the Tribunal to make a reference to this Court, the learned Tribunal has referred the question of law arising out of the Tribunals order passed in appeal, as stated at the outset. 6. Having heard learned counsel for the parties we are of the opinion that the Tribunal was not justified in holding that penalty of Rs. 4,000 imposed under section 43 (1) of the Act was proper on the facts and in the circumstances of the case, the assessment period involved being the calendar year 1961. 7. 6. Having heard learned counsel for the parties we are of the opinion that the Tribunal was not justified in holding that penalty of Rs. 4,000 imposed under section 43 (1) of the Act was proper on the facts and in the circumstances of the case, the assessment period involved being the calendar year 1961. 7. It is no doubt true that the sale price includes sales tax passed on by the dealer to the purchaser while selling the goods and this view of law stands settled by the Supreme Court. But the learned Tribunal has not given any finding that the non-inclusion of sales tax in the turnover returned was with a guilty mind on the part of the assessee. The provisions of section 43 (1) as it stood in the year 1961 in unamended form, however, envisaged mens rea to attract penalty. This section 43 (1) in 1961 empowered the Commissioner or appellate authority to impose penalty if the Commissioner or the appellate authority in the course of any proceeding under the Act was satisfied that a dealer had deliberately concealed his turnover in respect of any goods or furnished a false return. The expression "deliberately concealed his turnover. . . . . . or furnished a false return" in section 43 (1) of the Act necessarily indicated a guilty intention of trying to deceive the department. In the facts and circumstances of the case the assessee by not showing in his returns the sales tax recovered from customers under a bona fide impression that he is not required to show the sales tax recovered as a part of sale price, cannot be said to have guilty intention so as to attract penalty. Learned counsel for the assessee has cited a decision of this Court on similar facts in Delhi Cloth and General Mills Co. Ltd. v. Commissioner of Sales Tax, M. P. [1973] 32 STC 93; (1973) MPLJ 683 in support of his contention that the assessee had no intention to deceive the department on the facts and circumstances of this case and he cannot be said to have deliberately concealed his turnover or furnished false return so as to become liable for penalty under section 43 (1) of the Act as it existed in the year 1961. 8. 8. In view of the discussion aforesaid, we are clearly of the opinion that the assessee was not liable to penalty under section 43 (1) of the Act and the Tribunal was not justified in holding that penalty imposed on him was proper when the assessment period involved was 1961. 9. Accordingly, our answer to the question referred to this Court by the Tribunal is in the negative and in favour of the assessee. There shall, however, be no order as to costs. Reference answered in the negative. .